Government Employers Can (and Should) Have a Social-Media Policy

Delaware’s public employers seem to face a great deal of opposition when they propose to implement a social-media policy. In May, Kent County Levy Court tabled a proposed socia-media policy after critics raised somewhat confusing objections to it. And, last week, the Dover City Council rejected a proposed social-media policy after receiving a letter from the ACLU of Delaware. The ACLU’s letter concluded that the policy would encroach on employees’ free-speech rights. An ACLU representative spoke at the Council meeting, claiming that the policy would violate the First Amendment.

When the Kent County policy was first proposed, I wrote about some of the many reasons that employers do need social-media policies. In this series, I’ll address the constitutional issues that government employers face and explain that social-media policies, when properly drafted, do not violate the First Amendment. In the next post, I’ll explain the three-step test an employee must meet before he will be afforded constitutional protection for his speech. Then, in the third and final post, I’ll offer some examples of how the constitutional analysis has been applied by courts to employees’ off-duty speech, including online speech, and how those cases make clear that government employers, indeed, can restrict employees’ social-media activities in the interest of operating an effective and productive workplace. For now, what follows is a short summary of free-speech law as applied to social media:

The First Amendment to the U.S. Constitution provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.” But this restriction is not without limitation. The government may place certain restrictions its citizens’ speech. And when the government is acting as an employer, the limits it may impose on its employees’ speech are far broader. The U.S. Supreme Court has interpreted the First Amendment as providing government employers the ability to restrict speech to manage the workplace.

Thus, speech on a matter of “public concern,” i.e., that relates to the political, social, or other community concerns, will receive a higher level of protection. On the contrary, speech that is not on a matter of public concern, i.e., purely personal in nature, receives far less protection. In the context of social media, as discussed in the upcoming posts in this series, the same rules apply-government employers may restrict (through policies or discipline), employees’ speech.

Stay tuned for Parts 2 and 3 later this week.

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